Expert Witness Testifies Ordinance Passed by Conshohocken’s Borough Council Spot Zoning During First Hearing on Validity of Allowing Wawa in Residential-Office Zoning District

The first hearing before Conshohocken’s Zoning Hearing Board involving the challenge to the validity of the ordinance passed by Conshohocken’s Borough Council that amended the permitted uses in the Residential-Office zoning district was held on Tuesday, October 30th.

The challenge is being brought by the property owners who live in close proximity to the Moore property at 12th and Fayette, which through this ordinance would be permitted to be redeveloped as a Wawa with gas pumps.

One weird thing. The challenge is being brought due to an action by Borough Council. Borough Council is represented by an attorney, Matthew McHugh, and he is participating, but the developer’s attorney, Ross Weiss, is taking the lead and the Borough’s attorney is just following along.

We asked the attorney for the Zoning Hearing Board, Michael Clarke, about this and he said that its up to the parties of the case to determine their strategy. The result is that the developer is acting as the defender of Borough Council’s action. That seems upside down.

The hearing started with the attorney for the developer making an argument that three members of the Zoning Hearing Board should recuse themselves. The reasons were that Zoning Hearing Board member Janis Vacca had spoken against the ordinance at a Borough Council meeting, that Richard Barton is married to Borough Council member Anita Barton who voted against the ordinance, and that the attorney for the developer and Mark Danek are opposing counsel in an unrelated case.

The attorney for the developer asked that due to this and it being the majority of the board that the entire board recuse itself and allow for an independent review. The developer’s attorney expressed concerns that due to Zoning Hearing Board making a determination against the same project previously, that it shouldn’t hear this challenge. This motion was denied.

Tuesday night’s portion of the hearing focused on one witness, Thomas Comitta of Thomas Comitta Associates. He is a municipal planning expert. He was a witness for those contesting the ordinance, who are represented by attorneys Kate Harper and Gary DeVito.

Comitta’s testimony was that the ordinance passed by Conshohocken’s Borough Council resulted in spot zoning. Two things, there is no universally accepted definition of spot zoning and there is no specific law against it. What exists are conditions within ordinances that point to spot zoning and case law.

Comitta spoke on regulations within the ordinance that result in the Moore property being an “island” within the Residential-Office zoning district. The ordinance allows for a convenience store with gas pumps if the property involved is 150′ wide, 40,000 square feet, and not within 1,000 feet of another convenience store with gas pumps. The Moore property fits that description, however, Comitta testified that no other property within the Residential-Office district could meet that standard (thus creating the island). Comitta testified that even combining properties within the Residential-Office district wouldn’t meet the needed width. According to Comitta this points to spot zoning.

Another issue with the ordinance according to Comitta is that if even if someone bought adjacent properties and were able to meet the needed requirements (150′ wide, 40,000 square feet and not within 1,000 feet of the Moore property), Victorian style buildings on those properties would need to be demolished. Since the intent of the Residential-Office zoning district was to protect the Victorian buildings, even if the standard was met for a convenience store with gas pumps, the intent of the same ordinance prohibits it.

When Comitta was cross examined by the developer’s attorney he was asked to testify that Borough Council was within its right to amend the zoning code, which he confirmed.

The next hearings are scheduled for November 27th and November 29th at 7:00 p.m. at Borough Hall at West 4th Avenue and Fayette Street.